The Supreme Court of Vermont Law Blog: An on-going conversation about the practice of law in Vermont, featuring summaries of Vermont Supreme Court decisions, a dollop of lampooning, legal analysis, and a charming aggregation of creative thought.

Pages

Friday, July 17, 2015

Another Day, Another Dollar Store

Chester is a lovely town in southern Windsor County. It’s got a pretty downtown with New England buildings and homes. The Zaremba Group has a 10 acre plot of land about half a mile outside the village center, and wanted to build a Dollar General store on that plot of land. It’s outside the historic downtown district, sort of heading out of town. Or, maybe into town, depending on which way you’re going. The neighborhood has some woods, but also has buildings you would expect to see on the outskirts of town, like a gas station/convenience store, a church, an American Legion building, and a self-storage place. If this is where I think it is, I think I’ve been to a wedding reception at that American Legion building. While I don’t remember all the buildings in the neighborhood, necessarily, I certainly remember that the cake was crème brulee-flavored, and it was delicious. I also wore peacock blue sandals that I like very much and should really wear more often.

In any case, the Zaremba group decided they wanted to build a new Dollar General store on their 10 acres. The proposed building design is so that the building looks like a barn with a cupola sort of toward the front of the center of the roof. There are faux windows on the front, but no actual windows on the sides. The way it’s described, it sounds like a big box store sort of dressed up a little bit to look like a New England barn.

Zaremba applied to subdivide the lot and amend an existing Act 250 permit on the property. As a result, the Environmental Commission gave notice to the neighbors. The neighbors objected with concerns about flooding, traffic, aesthetics, and conformance with local and regional plans. There was ultimately a trial at the Environmental Court, which found in favor of Zaremba. The neighbors appealed to SCOV on the issues related to flooding and aesthetics.

Since the neighbors appealed, they had the burden to overcome the “clearly erroneous” standard. That is to say, that the Environmental Court’s conclusions weren’t supported by any credible evidence. This is a little like pole vaulting over the Empire State Building.

The floodway criterion in an Act 250 case requires the permit applicant to show that the impact of the project proposed won’t have an impact on the floodways such that it endangers the public. They have to address inundation flooding (Irene, anyone?) and also erosion hazards caused by increasing the water flow in the floodway.

At the trial, the Environmental Court heard from two experts on this topic. One was from the Agency of Natural Resources and one was an expert hired by Zaremba. ANR is allowed to get involved in Environmental Court cases to determine if a project falls in a floodway, although the burden is still always on the permittee to show that the project won’t do damage.

The neighbors didn’t present any evidence, but instead argued that the evidence the court had wasn’t sufficient, especially about the erosion piece. Without getting into specifics (because I am not a flood expert and I don’t know how to explain this so it makes sense), the Environmental Court found based on the expert testimony that the project wouldn’t change peak discharge of water and wouldn’t endanger the public. The neighbors also tried to argue that certain computer modeling should have been done to make some predictions about erosion hazards. SCOV says that isn’t required.

The neighbors also had an argument about the aesthetics criterion. If a proposed project will have an adverse aesthetic impact, and that the impact is undue, then the permit can’t go forward. Essentially, the project has to be able to fit in to the surrounding area, won’t be offensive to the ordinary person, or the permittee has taken some steps to reduce any impact.

So, can you build a nuclear plant in the middle of a downtown? Probably not. It’s not going to fit in, and no amount of pine trees planted around it will hide that it’s there.

The Environmental Court found that the proposed Dollar General would have an adverse aesthetic impact on the surrounding area, but that it wouldn’t be undue. Neighbors appealed, saying that the project would have an undue impact on the surrounding area. Chester has some zoning regulations, which the neighbors offered as evidence of what’s acceptable.

SCOV looks at the regulations and finds that although they require that buildings are supposed to adhere to a New England style, that this doesn’t really set forth a standard meant to preserve the aesthetics of Chester. They also refer to the “center” of Chester, which is actually about half a mile away from the site, so it’s not even clear that the regulation refers to the site of the proposed project. SCOV also notes that the buildings in the surrounding area are flat-roofed and not exactly “New England style,” so there’s a conflict between the zoning regulation and what’s actually on the ground.

So, SCOV affirms the trial court, and one day Chester will have a barn-shaped dollar store.